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California Protections for Sources and Source Material

There are three potential legal bases for protecting your sources
and source material in California: the California shield law, the
United States Constitution, and the federal Privacy Protection Act.

The shield law protects the identity of sources (whether
promised confidentiality or not), information that might lead to the
identity of sources, and unpublished information obtained or prepared in the course of
newsgathering activities. A leading California case has found that the
shield law protects some -- but not necessarily all -- online
publishers and amateur journalists (more below). The level of
protection offered by the shield law depends on whether the case is a
civil or criminal case and whether the person from whom information is
sought is a party to the case or not. It does not protect you from
disclosing information when you are a party to a civil or criminal
case.

The U.S. Constitution may protect you from having to disclose
the identity of sources or information collected during newsgathering.
Federal and state courts in California recognize a qualified reporter's privilege based on the First Amendment
to the U.S. Constitution. The reporter's privilege applies to the
identity of sources and unpublished information collected or prepared
in newsgathering, whether confidential or not (although protection is
stronger for confidential information). Because it is qualified, the
party seeking information from a reporter may overcome it upon a strong
showing of need. Unlike the shield law, this privilege may apply even when you are
a party to a civil lawsuit or criminal case.

The Privacy Protection Act may protect you against the search
and/or seizure, in connection with a criminal investigation or
prosecution, of materials you possess in connection with a purpose to
disseminate to the public a newspaper, book, broadcast, or other
similar form of public communication. This federal statutory protection
applies regardless of the state in which you live.

California has no other sources of law that offer you protection from disclosing information.

A publisher, editor, reporter, or other person connected
with or employed upon a newspaper, magazine, or other periodical
publication . . . or any person who has been so connected or employed,
shall not be adjudged in contempt [by a body with legal authority] for
refusing to disclose the source of any information procured . . . or
for refusing to disclose any unpublished information obtained or
prepared in gathering, receiving or processing of information for
communication to the public. . . .

As used in this subdivision, 'unpublished information'
includes information not disseminated to the public by the person from
whom disclosure is sought, whether or not related information has been
disseminated and includes, but is not limited to, all notes, outtakes,
photographs, tapes or other data of whatever sort not itself
disseminated to the public through a medium of communication, whether
or not published information based upon or related to such material has
been disseminated.

Who is Covered?

California's shield law protects a person "connected with or
employed upon a newspaper, magazine, or other periodical publication."
In an important case, O'Grady v. Superior Court,
139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appellate
court held that the shield law applies to persons gathering news for
dissemination to the public, regardless of whether the publication
medium is print or online. In that case, Jason O'Grady operated an
"online news magazine" about Apple Computers. He published confidential
information he received about a new Apple product. Apple wished to sue
the person who divulged the confidential information to O'Grady and subpoenaed
him for information about the identity of his confidential source. The
court applied the shield law, and O'Grady did not have to identify his
source.

The O'Grady case does not mean that all online
publishers will benefit from the protection of the California shield
law. The court indicated that the shield law protects newsgatherers,
like O'Grady, who engage in "open and deliberate publication on a
news-oriented Web site of news gathered by that site's operators." On
the other hand, the court said the shield law might not protect "the
deposit of information, opinion, or fabrication by a casual visitor to
an open forum such as a newsgroup, chatroom, bulletin board service, or
discussion group." The court expressly declined to decide whether the
shield law applies to bloggers because of the "rapidly evolving and
currently amorphous meaning" of the word "blog." Thus, the exact reach
of the California shield law is unclear, but it arguably protects
online publishers who gather and disseminate news to the public. The
exact definition of "news" is uncertain, and future cases will no doubt
determine its contours more precisely.

What Information is Protected?

California's shield law protects several types of information.
First, it protects unpublished information obtained or prepared in the process of
gathering information for communication to the public, including things like notes and outtakes. This unpublished
information may be protected from disclosure regardless of whether you obtained it in confidence or not.

Second, it protects the identity of sources, whether
confidential or not. The shield protects not only the identity of
sources themselves, but also information that might lead to their
identity.

Shield Law Protection in Different Contexts

The strength of protection offered by California's shield law varies
based on the type of case and whether the person from whom information
is sought is a party to the case:

Civil cases in which the newsgatherer is a third party:
Here, the shield law offers you absolute protection (assuming you are
covered by the statute, an issue discussed above). If a party in a
civil case issues a subpoena demanding the identity of your source or
unpublished information, you cannot be held in contempt for refusing to
reveal that information.

Criminal cases in which the newsgatherer is a third party:
Here, the strength of the shield depends on whether a prosecutor or a
criminal defendant is seeking the information. Prosecutors generally
cannot overcome the shield -- if a prosecutor seeks protected
information from you, you generally will not be forced to reveal
information if you are covered by the shield law (above). On the other
hand, criminal defendants can sometimes overcome the shield. If a
criminal defendant seeks information from you (again, assuming you were
covered by the shield law), a California court would balance your
privilege against the defendant's right to a fair trial. As a threshold
matter, the criminal defendant would need to show "a reasonable
possibility that the information [would] materially assist his
defense." The court would then weigh four factors to determine whether
to compel disclosure: (1) whether the information sought is
confidential or sensitive, (2) the interests protected by the shield
law, (3) the importance of the information to the defendant, and (4)
whether alternative sources for the information exist. The results
would be different depending on the facts of the particular case.

When the newsgatherer is a party to a case: When you are a party to a case, the law still protects you from being held in contempt for refusing to disclose the identity of your source and/or unpublished newgathering information, but this provides little protection because contempt is not the only remedy available to the court to force you to disclose information. For instance, if you refuse to disclose information, the court could enter judgment against you.

Federal Constitutional Reporter's Privilege in State Courts

Even when California's shield law is inapplicable, a newsgatherer
still may receive some protection based on the First Amendment of the
U.S. Constitution. As discussed above, California's shield law does not
protect parties to civil and criminal cases. However, California's
state courts have found that the First Amendment provides newsgatherers
with a qualified privilege against disclosure of confidential sources
and information provided by confidential sources, even when they are
parties to the case in which information is sought. In applying the qualified privilege, a court will balance the need of the person seeking information and the public interest in disclosure against the public interest in an uninhibited press.

Before ordering disclosure of the identity of confidential sources or
information provided by confidential sources, California state courts
balance five factors: (1) whether the reporter is a party to the
litigation; (2) the importance of the information to the case; (3)
whether other sources for the information are available; (4) the
importance of protecting confidentiality; and (5) the strength of the
case of the party seeking disclosure. It is not clear whether
California courts would extend this protection to those publishing news
through non-traditional media.

Federal Constitutional Reporter's Privilege in Federal Courts

Federal courts in the Ninth Circuit, which encompasses California, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

Privacy Protection Act

The Privacy Protection Act (PPA) makes it unlawful for government
officials to search for or seize work product or documentary materials
possessed by a person in connection with a purpose to disseminate to
the public a newspaper, book, broadcast, or other similar form of
public communication. 42 U.S.C. § 2000aa(a),(b).
If you are covered by the PPA, it can protect you from both state and
federal officials, regardless of what state you live in. To learn more
about the PPA, see Legal Protections for Sources and Source Material.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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